The Non-Inevitable Breadth of the 'Zeran' Decision

When Kenneth Zeran filed his complaint against America Online (AOL) in April 1996, the internet as we know it today did not exist.

By Samir C. Jain|November 10, 2017 at 12:05 AM

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When Kenneth Zeran filed his complaint against America Online (AOL) in April 1996, the internet as we know it today did not exist. Numerous services that for many consumers are now integral to the internet—such as Google, Facebook, YouTube, Twitter and eBay—either had not yet been developed at all or were in their infancy. At the same time, the interpretation of §230 was an issue of first impression. Section 230 had not received nearly the same attention as the rest of the Communications Decency Act (which itself was a single title in the broader Telecommunications Act of 1996), either during the legislative process or in the immediate legal aftermath, in which a Constitutional challenge to the act’s indecency restrictions was already well on its way to the Supreme Court.

In the face of this relatively clean slate, one key strategic consideration was how broadly to frame the case. It was not immediately evident that Congress had enacted a far-reaching immunity in a one-sentence subsection—§230(c)(1)—in the midst of these other more prominent provisions. Such statutory immunity is relatively rare. By providing that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” had Congress intended to preempt virtually all state tort and statutory causes of action against service providers, as well as non-criminal federal claims, for third-party content? Would such immunity apply even when a service provider knew of the unlawful content and intentionally chose to take no action?

At least in isolation, it was possible to construe §230(c)(1) more narrowly. The terms “publisher or speaker” could be interpreted in a technical sense to refer to defamation law—libel is a published defamatory statement, while slander is a spoken defamatory statement. Moreover, as the legislative history makes clear, a significant impetus for §230 was overruling Stratton Oakmont v. Prodigy Services, which had held a service provider potentially liable for a user’s defamatory posting. And, although Zeran’s claim was for negligence, at bottom the case concerned allegedly defamatory content about Zeran, and, as the Fourth Circuit recognized, the label attached to the claim should not be determinative. Thus, the core of the case could have simply been that, because publication is an element of defamation, holding a service provider liable for defamatory third-party content necessarily treats it as a publisher of that content in derogation of §230. That would have been sufficient for AOL to prevail and left the ultimate breadth of the immunity for another day.

From the start, however, AOL understood the potential significance of §230 to the growth and development of the internet. Although immunity from defamation claims for third-party content would be helpful, the specter of other tort and statutory liability for all other claims still would have a chilling effect on the amount and types of content service providers might permit and create disincentives to self-regulation. Moreover, §230 clearly was about more than defamation. Given the context, Congress at minimum also intended to remove disincentives for self-regulation of indecent and similarly objectionable content. Further, the statutory exceptions for intellectual property, privacy, and federal criminal enforcement would have been unnecessary if the statutory immunity were confined to defamation. Accordingly, the briefs framed the case broadly, explaining that imposing liability on a service provider necessarily treats it as a “publisher or speaker” of third-party content and focusing on the statutory purposes and the practical implications that potential liability would have for both free speech on the Internet and incentives for self-regulation.

Although the district court wrote a relatively narrow opinion in AOL’s favor “limited to the state law claim … asserted here,” the Fourth Circuit took a more expansive approach. Before turning to Zeran’s specific arguments, the court described the statute in sweeping terms. In language that was cited repeatedly in subsequent cases, the court explained that “by its plain language, §230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service … lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred. And the court proceeded to discuss in detail how broad immunity was necessary to fulfill the purposes of the statute.

It is fortunate that the Fourth Circuit recognized the significance of §230 and chose to write such a defining opinion. The facts of Zeran—while involving a sympathetic plaintiff victimized for no apparent reason—made it easy to see the pernicious consequences if service providers could be held liable for third-party content. Some of the next few cases that arose, such as Doe v. AOL and Blumenthal v. Drudge, did not present the legal and policy issues as cleanly. The Zeran opinion provided an anchor that moored the decisions in those cases and many subsequent ones. Without the Zeran opinion, on the other hand, the case law might have evolved in a much messier way and not provided the same certainty and assurance that has been so important in fostering the growth of so many internet services.

Samir C. Jain is a partner at the law firm of Jones Day. He represented AOL in the Zeran case and has represented service providers in numerous subsequent cases involving §230. The views and opinions set forth in this article are his own and do not necessarily reflect those of his firm or former or current clients.

This essay is part of a larger collection about the impact of Zeran v. AOL curated by Eric Goldman and Jeff Kosseff.

Erin Nealy Cox, now the U.S. attorney for the Northern District of Texas, comes from a cybersecurity background with McKinsey & Co. and Stroz Friedberg, along with the public sector.

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